Academic journal article
By Devins, Neal; Fisher, Louis
Constitutional Commentary , Vol. 19, No. 1
By confronting President Harry Truman and striking down his effort to seize the steel mills needed to prosecute the Korean War, (1) the Supreme Court adhered to its longstanding practice of accepting and deciding cases dealing with the war power. Yet over the next half century the courts systematically sidestepped this type of case. In this essay, we will explain why the Court asserted itself in 1952 and why the modern Court seems incapable, or unwilling, to decide fundamental constitutional issues regarding the allocation of the war power between Congress and the President.
Before turning to the 1952 steel seizure, we need to flag a dispute. Some defenders of presidential war power do not regard Youngstown as a foreign affairs case. Instead, they view it as a case about the "taking of private property without due process of law." (2) Others, who think that Congress and the courts should check presidential war-making, call Youngstown "the Brown v. Board of Education of foreign affairs litigation." (3) But no matter how one characterizes Youngstown's precedential significance, the Court's willingness to assert itself can be traced, in part, to the Justices' then-customary practice of adjudicating war-making disputes, disposing of them as they would any other legal or constitutional dispute.
Section I of this essay explains why we think this is so, calling attention to a host of factors contributing to the Court's repudiation of the seizure. Section II builds upon this analysis. Following a brief discussion of how Supreme Court decisionmaking is tied to social and political forces, we explore why today's Court is loath to assume its traditional role in our system of checks and balances. In particular, pointing to fundamental changes in executive-legislative relations over the past fifty years, we explain how the modern Court has altered its decisionmaking. In Section III, we suggest that this reversal, while understandable, is undermining our system of constitutional governance. In our view, no branch should hold a monopoly over the initiation of war.
I. JUDGES CONFRONT TRUMAN
President Harry Truman took the initiative in June 1950 to order U.S. forces to Korea. By acting solely on his interpretation of presidential power, Truman became the first president to involve the Nation in a major war without receiving specific authorization from Congress. (4) Nevertheless, had the Steel Seizure Case reached the courts in late 1950 or early 1951, judges--leery to hinder prosecution of the war--might have sidestepped a judicial resolution of the issue. (5) At that time, Congress and the nation backed the president's initiative. (6) However, by the time Truman issued his 1952 executive order taking control of certain steel companies, a cluster of military, legal, and political factors conspired to markedly erode presidential power and embolden the judiciary.
The context of the case put the President's power as Commander in Chief front and center. Truman's executive order was drafted almost entirely as a military imperative. The second paragraph pointed out that "American fighting men and fighting men of the United Nations are now engaged in deadly combat with the forces of aggression in Korea." (7) The weapons and materials needed for that effort "are produced to a great extent in this country, and steel is an indispensable component of substantially all of such weapons and materials." (8) A work stoppage, he warned, "would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field." (9) The first of seven paragraphs ordering the Secretary of Commerce to seize the steel mills directed him to take possession of all such plants "as he may deem necessary in the interests of national defense. …